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In a rather off-key fanfare, the eThekwini Municipality announced this week its decision to lease part of the seabed - including Vetch's Beach - to itself for R1 000.00 per annum for a century in order for development of the Point area to commence.

Off-key - because this decision goes against both the laws of the country and the interests of the people of Durban who are the true owners of the area in question.

Apart from the municipality itself, the only other nod of appreciation seems to come from developers - the municipality's 50% partner in this plan - who have for many years attempted to force this decision through municipal committees.

Judging from the crumbling state of "developments" previously completed, the people of Durban stand to both lose a beach loved and used by all AND be left with a facade of constructions that merely serves to blot the landscape.

Fortunately this announcement by the municipality does not mean that the so-called Point Development will become fact. Before any chords are played, there are certain issues to deal with and questions to be answered.

In harmony and against the leasing of the seabed/destruction of Vetch's Beach is an orchestra consisting of:

- Guardians of Vetch's beach - the people of Durban

- The Save Vetch's Association

- The legal opinion of senior local advocates

- Some members of the eThekwini Municipality Executive Committee

- The Department of Environmental Affairs, and

- The Ministry of Environmental Affairs and Tourism of South Africa

This article is written by a member of the first category: a citizen of Durban and a child of the beach. Like so many others, I live in Durban because I love the thing. This city without its beaches will be a creature without eyes and I will protect and fight for it and our lifestyle here against the greed of the few.

Despite factors such as apathy and life generally getting in the way, a band of committed and more vigilant citizens have formed the Save Vetch's Association and have been tracking events and communicating with formal structures regarding these events, preserving information and relaying the facts to the general community. Their opinion is published below, as are those of various local advocates, followed by a response to this issue from government structures.

It is, frankly, surprising that this issue is still on the table at all. We will NOT hand over our beach. Our seabed is NOT available to be leased - not for a century, not for 20 years, not at all.

It is clear from the correspondence below that over the years this has repeatedly been made clear to the prospective developers.

Perhaps it is time that they get the message now? Because it seems they continue to count their chickens before they've hatched. Screenshots taken over the months of one developer's website show a clear promise being made to potential investors that the final phase of developments at the Point "will overlook a small craft harbour"!

Do we as the people of Durban now have to make the impossible sacrifice of our beach because of these deceitful promises? Give up our heritage because of the airy castles built in the imagination of investors who have not been informed of the facts?

Apart from other concerns, the potential cost to the eThekwini Municipality itself, if the pressure to "develop" Vetch's continues, is immense: that of credibility with informed investors. The billions of investment allegedly lost due to delayed signing of the lease agreement is nothing compared to the losses that will be incurred when investors discover the lies that they have been told.

But lets ensure that the blame for that is placed where it belongs and that Durban itself does not get damaged and blamed at the fall-out.

The fact that the decision by Durban Metro to apply for the leasing of the seabed at Vetch’s, took close to 10 months to make, indicates just how controversial this decision was. But since its inception, controversy and the Point development have become synonymous. This issue was debated on the Executive council on numerous occasions, and was continually deferred. Only a week ago, eThekwini Municipality Chairman of Human Settlements Committee, Nigel Gumede stated “If we agree to the recommendations, this may be a non-starter if the court case is not resolved. We may find ourselves with resolutions that can’t be implemented.” He was of course referring to the Save Vetch’s Association (SVA) Review case in which we ask the Minister of Environmental Affairs to review the authorization of the small craft harbour. This case has to be heard before any construction can commence. SVA filed the founding affidavit in February 2010 and to date, three out of four respondents have still to submit their answering affidavits. So this process has still a long way to go.

Our legal team of 4 senior advocates have provided us with a highly researched opinion which makes it clear that the application to lease the seabed from the Dept. of Transport, is simply unlawful for a number of reasons. Firstly, we have on record a letter dated January 2009, from the office of the Dept. of Environmental Affairs, stating that the seabed never belonged to Transnet, but is actually public land. This was again confirmed in parliament by the present Minister of Environmental Affairs when she was questioned by DA Member of Parliament, Gareth Morgan.

Secondly, the eThekwini Municipality is relying on an isolated clause of an act that is 77 years old (Sea Shores Act of 1935) to attempt to circumvent the entire essence of that act as well as the current one, being the Integrated Coastal Management Act of 2008. The main purpose of both these acts is purely to protect the seashore for the people of South Africa. Reading both of these acts together, the provisions of the Seashore Act which entitle the Minister of Transport to lease the sea and seashore to the Municipality, must, in our view, be interpreted within the context of the provisions of the Integrated Coastal Management Act and the State in exercising any power or function must do so in a way which is consistent with the Integrated Coastal Management Act. In other words, it would not be competent for the municipality to lease the seashore and seabed to a property developer if this was not in the interests of the whole community. Furthermore, if conflicting issues occur between the two acts, the 2008 act will supersede the outdated 1935 act. The full legal opinion and relevant letter and parliament questions are available below.

We believe it is our duty to take whatever action is required to force our authorities, which should be protecting our natural environment themselves, from destroying it. It was not too long ago, that our municipality along with high Government officials, one being our Deputy President, marched along the “Blue Line” supposedly to highlight the effects of sea level rise during COP17. The Blue Line is where developers were advised to retreat to and was established by our own Metro. This was obviously done to impress our foreign dignitaries and show us as “leaders in climate change policies”, but in reality, at Vetch’s, they are ignoring their own advice and are bent on going the opposite direction, well into the sea. Pictures of the Blue Line march are displayed on our Gallery section.

In a nutshell, our city fathers are attempting to use ratepayer’s money once again to take away a most valuable public asset and hand it over for a measly sum of R1000 per annum to a private developer, of which it is a 50% shareholder. This is not only unlawful but totally immoral!

We are asked to advise on a proposal to lease portion of the seashore and the seabed between Vetch’s Pier and the North Pier of Durban Harbour to theeThekwiniMunicipality. The proposal was advertised in April this year. The advertisement states that the intention is to enter into a lease in terms of section 4 of the Seashore Act 1935.

The area in question falls within the area ofDurbanHarbouras set out in the First Schedule to the South African Transport Services Act No.65 of 1981. That area is defined as being the area of sea bounded by lines set out in the description together with the foreshore wharfs, docks, basins, jetties, piers and harbour works and all harbour and docklands vested in the Government of theRepublicofSouth Africa. The area fell within the South African Transport Services jurisdiction as defined in Act 65 of 1981 which is referred to in section 3(3) of the Legal Succession to the South African Transport Services Act No. 9 of 1989.

The power to enter into the lease which is referred to in the notice which we have mentioned is section 4 of the Seashore Act. That enables the Minister subject to the conditions in section 4(2) and such other conditions as he may deem expedient to let any portion of the seashore and the sea of which the State President is by section 2 declared to be the owner to any local authority. Section 2 declares the State President to be the owner of the seashore and the sea except any portion lawfully alienated before the commencement of the Seashore Act. As the area in question falls withinDurbanHarbourwe mention that section 13(b) provides that the Seashore Act is not to affect rights or powers conferred upon the Administration as previously defined in the Seashore Act

“by or under any law relating to ports and harbours in respect of any portion of the seashore or the sea”.

If there is a conflict between the Seashore Act and the other law referred to then the rights and powers of the Administration

“shall be determined by the provisions of such law and not by the provisions of this Act”.

By virtue of section 36(2) of Act 9 of 1989 the reference to Administration in section 13 of the Seashore Act is to be construed as a reference to the company which became the successor to the South African Transport Services.

We feel that it is desirable to mention section 13 and the provisions relating to the Transport Services although they are not relied on in the notice with regard to the proposed lease. Their existence is however we think possibly relevant with regard to the interpretation of the Act which in our view is crucially relevant namely the National Environmental Management Integrated Coastal Management Act No. 24 of 2008. In general that Act was brought into force on 1 December 2009. There are however some sections which have to be considered which have not been brought into force. The first is section 11 providing that the ownership of coastal public property vests in the citizens of the Republic. The others are sections 95 and 96, and section 98 which repeals two Acts one of them being the Seashore Act 1935 and the other Dumping at Sea Control Act 1980.

In view of some suggestions in correspondence from the eThekwini Municipality to the Minister of Transport dated 20 August 2009 we should mention that in our view it is clear that it cannot seriously be suggested that the Municipality had any existing right to the property proposed to be leased which might qualify as being preserved either by section 95 of the 2008 Act or otherwise. The question in our view is what effect the 2008 Act has on the powers under the Seashore Act.

As we have mentioned section 4 of the Seashore Act enables the Minister to let any portion of the seashore and the sea to any local authority. Section 4(3) by incorporating section 3(5) and (6) requires notice to be given and an opportunity for objection to the proposal.

Although as we have said section 11 of the 2008 Act is not yet in force, most of the provisions are. These provisions include section 12 which provides that the State must ensure that coastal public property is used, managed protected, conserved and enhanced in the interest of the whole community. Coastal public property means coastal property referred to in section 7 and therefore includes the seashore. Any activity on or in coastal waters must be in the interests of the whole community.

Coastal waters includes marine waters forming part of the internal waters or territorial waters of the Republic referred to in section 3 and 4 of the Maritime Zones Act 1994. The phrase “internal waters” is referred to in section 3 of the Maritime Zones Act and includes all harbours. Territorial waters means the sea within a distance of 12 nautical miles from the base lines referred to in that Act. It is therefore clear beyond any doubt that the property proposed to be leased constitutes coastal waters and coastal public property in terms of the 2008 Act.

Generally speaking the 2008 Act proceeds on the basis set out in section 13 that every natural person has a right of reasonable access to coastal public property. There are certain exceptions to this right in section 13(2) but none of those is suggested to apply here. Generally speaking therefore if it is desired to grant any rights with regard to property forming part of coastal public property then the property concerned must be excluded from coastal public property in terms of section 27. Possible exclusions are under section 27(2) for government purposes and under section 27(4) for any other purpose “with the ratification of parliament”. Section 27(7) defines “government purposes” as meaning the exercise of functions by an organ of state that are in the national interest or in the interest of national security. Donation, leases of more than 20 years or alienation by the organ of State concerned are expressly excluded from the definition of government purposes.

It follows that if the Minister were to wish to lease the land to the eThekwini Municipality in terms of section 27 the lease would either have to be for a period of less than 20 years and for the exercise of functions by the Municipality that are in the national interest or in the interest of national security. Obviously none of these considerations apply to the proposal by theeThekwiniMunicipality. Any exclusion would therefore have to be under section 27(4) with the ratification of Parliament.

It is therefore in our view quite clear that the proposed lease cannot be entered into under the 2008 Act and in fact it is not proposed that it should be. What is proposed is that it should be entered into under powers under the Seashore Act of 1935 in a manner entirely inconsistent with the 2008 Act.

In our view this is not permissible. The 2008 Act makes it clear that from the date of the commencement of the Act the provisions of the Act govern the topics dealt with in the Act including dealing with coastal public property. Those provisions are not consistent with the preservation of section 4 of the Seashore Act and the provision which might conceivably be relied on by virtue of section 13 of the Seashore Act. The two sets of provisions in our view cannot stand together and it is inconceivable in our view that it was intended that they should do so. Section 6(1) in fact provides that if there is a conflict relating to coastal management between the 2008 Act and any other legislation, the 2008 Act prevails. Coastal management is defined as including among other things the development of the coastal zone which includes coastal public property and development expressly includes the construction and erection of any structure.

We have dealt to some extent with the provisions of the 2008 Act in order to indicate that in our view the 2008 Act shows a clear intention to govern all aspects of the matter. In particular in our view it cannot be said that because section 4 of the Seashore Act deals with the specific subject of letting or transfer to a local authority that particular aspect must not be regarded as inconsistent with the 2008 Act on the basis of a suggestion that the 2008 Act deals with the matter generally and not specifically. This suggestion in our view is insupportable in view of the specific mention to which we have drawn attention of, in particular, letting to organs of State.

Tex Collins Democratic Alliance Caucus leader has slated the decision by the ANC dominated eThekwini Executive Committee to approve the lease of the sea bed for 99 years stating that it must be viewed exactly for what it is, “an appallingly exclusive decision which effectively excludes the vast majority of the citizens of Durban”.

“The small craft harbour will cater for only the “super rich” and will ensure that those beachgoers who for generations have visited the Vetchs beach will now be confronted by concrete breakwaters and admittance to the area only to those who can afford the fees.

Collins further stated that the Small Craft Harbour is certainly not motivated by altruism or the need to provide a facility for the average Durban family, rather a seemingly misplaced idea that the small craft will be good for Durban. In terms of the Integrated Coastal Management Act the seashore and the sea belongs to the people of the Republic Of South Africa and not a small group of well connected individuals who would put their own interests before those of the majority.

The development of the point area is an important aspect of the strategic plans for the City, but this development is definitely not dependant on a small craft harbour. Development of the point areas has been moribund for some time and it is this area that should be the main focus of attention. The Democratic Alliance has long been of the view that Durban already has a working and successful small craft harbour so what need is there to build second harbour out in the ocean.

No clear indications have been provided as to where the funding for such a scheme will come from but there is no doubt that the beleaguered ratepayers of Durban will be asked yet again to dig deep into their already overstretched budgets to fund yet another major development that will provide nothing more than another nice to have rather than a need to have.

..... and this has been "communicated to interested and affected parties on several occasions":

Emphasis added to the letter below:

Ref: 02/1/5/2

MINISTER

QUESTION NO. 1353 FOR WRITTEN REPLY: NATIONAL ASSEMBLY

A draft reply to Mr G R Morgan (DA) to the above-mentioned question is enclosed for your consideration.

Ms Nosipho Ngcaba

DIRECTOR-GENERAL

DATE:

DRAFT REPLY APPROVED/AMENDED

MRS B E E MOLEWA, MP

MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS

DATE:

NATIONAL ASSEMBLY

(For written reply)

QUESTION NO. 1353

INTERNAL QUESTION PAPER NO. 12 NW1499E

DATE OF PUBLICATION: 21 April 2011

1353. Mr G R Morgan (DA) to ask the Minister of Water and Environmental Affairs:

(1) Whether, with reference to the notice that was published by the Minister of Transport in The Mercury on 11 April 2011 regarding his intention to enter into a lease agreement with eThekwini Municipality in terms of Section 4 of the Seashore Act, Act 21 of 1935, for the purpose of leasing the seashore and seabed between Vetch's Pier and the North Pier of Durban Harbour, her department has been consulted on the matter; if not, what is the position in this regard; if so, what are the relevant details;

(2) on what legislative grounds will the provisions of the Seashore Act override the provisions of the National Environmental Management: Integrated Coastal Management Act (NEMICMA), Act 24 of 2008, under any circumstances

(3) whether she intends to exclude the specified land from coastal public property in terms of section 27(4) of the National Environmental Management: Integrated Coastal Management

(4) whether she stands by the contents of the letter written by the former head of the Office of the Minister of Environmental Affairs and Tourism (name furnished) to a certain law firm in Durban (name furnished) on 14 January 2009 stating that Portnet never owned the sea and that areas reclaimed from the sea do not belong to them; if not, what is the position in

(5) whether she will make a statement on the matter?

Mr G R Morgan (DA)

SECRETARY TO PARLIAMENT

HANSARD

PAPERS OFFICE

PRESS

1353. THE MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS ANSWERS:

(1) No, the Department of Environmental Affairs was not formally consulted regarding the proposed lease of the sea-shore, sea and seabed between Vetch’s Pier and the North Pier of theDurbanharbour. The Minister of Transport takes the lead in terms of the Seashore Act, 1935 (Act no. 21 of 1935) (Seashore Act) when an application is received to lease any area below the high water mark in a proclaimed harbour area because the relevant sections of the National Environmental Management: Integrated Coastal Management Act, 2008 (Act no. 24 of 2008) (ICM Act) are not yet in force.

2) The Seashore Act cannot override the ICM Act as the ICM Act is a more recent Act and specifically states that it will prevail over any other legislation on coastal issues. If there are conflicting provisions in the two Acts the ICM Act will therefore prevail. If the Sea Shore Act covers issues which are not covered in the ICM Act or issues which are in the ICM Act, but which are not yet in force, then only those relevant sections of the Seashore Act will prevail. Although the ICM Act contains provisions for the leasing of coastal public property, which includes the sea and seashore (sections 65 and 66), these sections of the ICM Act are not in force and therefore any such leases will have to be concluded in terms of the Seashore Act. On the other hand, if both the Seashore Act and the ICM Act contain provisions that deal with a specific issue, such as reclamation from the sea, the provisions of the ICM Act will prevail and reclamation will be administered under the provisions of the ICM Act.

(3) No application has yet been received to exclude any areas from coastal public property in the Durban Point area.

(4) Yes, I still stand by the contents of that specific letter.

(5) I do not think it is necessary for me to make a specific statement on this matter. The ICM Act is quite clear and the views of the Department of Environmental Affairs and my predecessor have been communicated to interested and affected parties on several occasions

AFTER several lengthy delays, the ethekwini municipality has given the controversial Point waterfront development the green light to lease part of the sea and beach to build a small-craft harbour and luxury hotel at Vetch's Pier.

But any hope of development getting off the ground soon was dashed when the Save Vetch's Association threatened to "lodge whatever legal challenge is required" to interdict against any construction at the waterfront zone.

The city's top brass yesterday agreed to lease the Vetch's Pier area for 99 years for the construction and maintenance of the small-craft harbour with a nominal rent of R1 000 a year, but with the rental for the full period amounting to R99 000 to be paid upfront.

Last week The city's legal department was asked by the executive committee to clarify whether the Integrated Coastal Management Act of 2009 or the Seashore Act of 1935 should be adopted when negotiating leases with the developers.

DA caucus leader Tex Collins said that it would be unlawful to rely on the outdated Seashore Act, which was in conflict with the newer Integrated Coastal Management Act of 2009.

But municipal legal services head Nokhana Moerane said certain sections of the Integrated Coastal Management Act of 2009 had not been brought into operation.

The Durban Point Development Company had applied to Transport Minister S'bu Ndebele to lease the Vetch's Pier area, relying on the old Seashore Act and because the land was part of the Durban harbour, which was covered by the SA Transport Services Act.

However, according to the newer coastal law, public property could only be leased for a maximum of 20 years, unless a longer lease was approved by Parliament.

Collins said building a small-craft harbour was not in the interest of the entire Durban community. ANC councillor Nigel Gumede accused Collins of having a personal interest in the matter. But Collins said that he was acting in the interest of ratepayers.

Minority Front councillor Patrick Pillay said his party would not support the recommendation until the court cases had been finalised. Save Vetch's Association chairman Tony Ferreira said the association would not back down.

Neels Brink, for the Durban Point Development Company, said the city's decision was "very good news". City manager S'bu Sithole said the development was important for the Point precinct.